Guide on Article 3 of Protocol No. 1 – Right to free elections A. Inability to stand for election and the democratic order 49. As regards limitations on the right to stand for election, the protection of the democratic order is one of the aims compatible with the principle of the rule of law and the general objectives of the Convention. 50. However, in order to be compatible with the Convention, the rejection of a candidature must in the first place be legal: in particular it must be prescribed by law. In Dicle and Sadak v. Turkey, 2015, the applicants, MPs from a political party that had been dissolved, had been sentenced to heavy prison sentences for membership of an illegal organisation. They were given a retrial after a judgment of the European Court of Human Rights. However, their candidatures for the parliamentary elections were rejected on the ground that they had not served their sentences in full. In its examination under Article 6 § 2 of the Convention, the Court noted that it was clear from the national decisions that, following the decision to hold a retrial, the case had to be heard as if the applicants were standing trial for the first time. It concluded that the maintaining of the initial conviction on the applicants’ criminal record and the subsequent refusal of their candidature was not prescribed by law and that there had thus been a violation of Article 3 of Protocol No. 1. 51. In Etxeberria and Others v. Spain, 2009, the applicants’ candidatures had been annulled on the grounds that they were pursuing the activities of the three political parties which had been declared illegal and dissolved on account of their support for violence and for the activities of the ETA, a terrorist organisation. The Court found that the national authorities had had considerable evidence enabling them to conclude that the electoral groupings in question wished to continue the activities of the political parties concerned. The Supreme Court had based its reasoning on elements external to the manifestos of the disputed groupings and the authorities had taken decisions to bar individual candidates. After an examination in adversarial proceedings, during which the groupings had been able to submit observations, the domestic courts had found an unequivocal link with the political parties that had been declared illegal. Lastly, the political context in Spain, namely the presence in the government bodies of certain autonomous communities, and in particular in the Basque country, of political parties calling for independence, proved that the impugned measure was not part of a policy to ban any expression of separatist views. The Court thus found that the restriction had been proportionate to the legitimate aim pursued. 52. However, whilst it is less stringent than when it concerns the active aspect of Article 3 of Protocol No. 1, the Court’s scrutiny – of the passive aspect – is not absent. In particular, the proportionality test, although relatively flexible, is a real one. The Court has, in particular, found a number of violations of Article 3 of Protocol No. 1 on account of the disproportionate nature of sanctions imposed on MPs after their parties had been dissolved for undermining territorial integrity and the unity of the State, or to preserve the secular nature of the political system. 53. The Court has also stressed the need to afford sufficient safeguards against arbitrariness in the framework of the procedures of the domestic authorities, including the need to provide sufficient reasons. In Political Party “Patria” and Others v. the Republic of Moldova, 2020, the disqualification of a party three days before parliamentary elections on account of the alleged use of undeclared foreign funds was found to be arbitrary on account of the lack of sufficient procedural safeguards. 54. It is noteworthy that cases concerning the banning of political parties on account of the incompatibility of their manifestos with democratic principles are usually examined under Article 11 (freedom of assembly and association) of the Convention. Article 3 of Protocol No. 1 is then regarded only as secondary and as not raising a separate issue (Refah Partisi (the Welfare Party) and Others v. Turkey [GC], 2003; Linkov v. the Czech Republic, 2006; Parti nationaliste basque – Organisation régionale d’Iparralde v. France, 2007). European Court of Human Rights 15/35 Last update: 30.04.2021